Dissertation

This dissertation reconstructs eighteenth-century understandings of executive power to provide a constitutional theory of implicit presidential powers and duties in emergencies. My project theorizes both structural and normative considerations that ought to constrain office holders that use the pretext of an emergency as an opportunity to stretch executive discretion. The core contribution of this work is in response to extra-constitutional accounts of presidential prerogative that are attributed to John Locke’s understanding. In the extra-constitutional understanding, the executive may act both outside and against the law in emergencies. Problematically, these accounts depend on office holders possessing the requisite character and virtue to exercise self-restraint. I argue existing frameworks undermine the separation of powers, dismissing structural constraints that guard political liberty against the abuse of executive power. To theorize a meaningfully limited account of presidential power, I look to eighteenth-century and early American conceptions of executive power that contemporary scholars overlook.

My account of the constitutional uses of presidential power is indebted to the historical thinkers that were most influential on the development and early interpretation of the U.S. Constitution. The three substantive chapters of my dissertation analyze how Baron de Montesquieu, William Blackstone, and John Marshall understood the exercise of executive discretion to be limited by constitutional frameworks. These sources offer a limited account of implicit prerogative where the executive could act outside but not against the law. Montesquieu, Blackstone, and Marshall all theorized the limited constitutional functions of the executive with respect to the separation of powers and its relationship to political liberty. Montesquieu provides an account of the “momentary” uses of executive power with respect to Rome’s republican dictatorship and England’s monarch. Blackstone offers a limited theory of “discretionary prerogative” power and the ways in which Parliament constrained its abuses. And Marshall develops their thought to reconcile the doctrine of the separation of powers with independent executive discretion in the American presidency.

These eighteenth-century constitutionalists grappled with the paradox of executive power. How can a government confer an executive with requisite dispatch and unity to meet the demands of momentary emergencies, but maintain stability by ensuring it remain subject to constitutional limits? Emergency situations may temporarily empower the president to act outside legislative authorizations. But those particular executive actions ought to be harnessed by constitutional limits, retroactive review, and enjoinders from legislative bodies that may constrain discretionary actions. The structural theory provided by this dissertation presents common sensical insights on contemporary challenges related to executive power today. Presidents should not be able to dispense with the positive law by ignoring legislative restrictions on their discretion. To more reliably secure political liberty, executive power ought to remain subject to constraints from the separation of powers and constitutional limits.